In the wake of The Miami Herald’s excellent series, Neglected to Death (Part 1; Part 2; Part 3), on the dire health and safety issues associated with Florida’s nursing home/assisted living facility industry, this is a good time to discuss some legal propositions closely related to the subject.
The Herald series focused on the problems and the state’s role, through AHCA and law enforcement, to control the situation. It paid little attention to the important role the civil justice system can and does play in regulating the system.
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case.
In Florida, nursing home residents and their families harmed by negligence can bring claims through the civil justice system against those responsible for causing the harm. Such claims are brought under the parameters established by Chapter 400 of the Florida Statutes.
Even though victims may have the right to sue under Florida law, there is no guarantee of recovering compensation from the wrongdoers. This is because many of the facilities do not carry adequate insurance to cover losses or operate through a legal tangle of corporations and fictitious names designed to frustrate collection efforts.
Estate of Canavan v. National Healthcare Corp., 889 So. 2d 825 (Fla. 2d DCA 2004), provides some assistance to those trying to collect for nursing home negligence. The case, involving a lawsuit brought by the estate of a deceased nursing home resident, allows victims’ attorneys to hold a company’s directors or statutory managers personally liable for policy-level decisions affecting the operation of a long-term care facility.
The case has its detractors, who argue that it conflicts with Florida’s codified business judgment rule (BJR), which immunizes directors’ business decisions from claims founded on simple negligence. Florida’s BJR as codified in F.S. Sections 607.0831 and 608.4228.
Their arguments are legitimate, but until the legislature changes Chapter 400 or another Florida District Court of Appeal issues a decision supporting their position, Canavan is the law of the land. As long as Canavan controls, negligent nursing home directors will remain the target of civil trial attorneys. Because the threat of accountability can be a strong deterent, this is a good thing.
The value of a robust civil justice system should not be overlooked. Private attorneys, at no taxpayer expense, perform some of the same functions required of AHCA and law enforcement.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
Contact us at 866-785-GALE or by email to learn your legal rights.